Attorneys for two of the three men charged with the murder of 73 passengers in the MV Barima disaster are asking the Charity Magistrate’s Court to stay the criminal proceedings, arguing that the prosecution amounts to an abuse of the court’s process.

Written submissions filed on Monday, by attorneys Dexter Todd, Dexter Smartt, Eden Corbin, Keona Higgins and Acacia Carroll on behalf of Captain Kevin Price and Goods Superintendent Delon Granderson argue that the State proceeded with the murder charges before the marine-casualty investigation contemplated under the Shipping Act had been properly undertaken.

The defence contends that the Shipping Act provides a specialised statutory framework for investigating the loss of a vessel and loss of life arising from a maritime accident, including powers to examine the vessel, its machinery and equipment and to determine issues such as serious negligence and compliance with statutory duties.

According to the submissions, the MV Barima disaster falls squarely within that framework.

The attorneys argue that issues central to the murder case including what caused the vessel to capsize, its condition and seaworthiness, its loading, navigation, safety requirements and the acts or omissions that contributed to the deaths  are precisely the matters contemplated by the specialised marine-casualty investigation process.

They contend that requiring the accused to defend murder allegations while those underlying circumstances remain under investigation creates a risk of premature attribution of responsibility, conflicting findings and prejudice to the defence.

The defence is also pointing to the Commission of Inquiry established into the disaster, arguing that the criminal proceedings and the inquiry create overlapping investigative processes dealing with substantially the same factual circumstances.

“The defendants ought not to be required to navigate two parallel statutory processes concerning the same factual subject matter,” the attorneys submitted.

The defence, however, expressly acknowledges that the Director of Public Prosecutions has constitutional authority to institute criminal proceedings and says it is not asking the court to determine the accused men’s guilt or innocence.

Instead, the attorneys are asking Magistrate Ravindra Mohabir to stay the proceedings until the appropriate investigative mechanism is clarified and the outstanding maritime investigative issues are resolved.

The application follows a preliminary challenge raised by counsel at the September 14 court hearing. Magistrate Mohabir had directed the defence to file its written submissions by September 28, with the prosecution to respond by October 12.

The magistrate has indicated that he intends to rule on the application on October 19.

The defence submissions also state that the prosecution confirmed on September 7 that full disclosure had been made to the defence. The attorneys were given seven days to indicate whether statements would be filed, with any such statements due within 45 days, by October 19.

The paper committal proceedings are scheduled to commence on November 16.

Price, Chief Mate Rondell Dwayne Roberts and Granderson were each charged with 73 counts of murder following the July 18 sinking of the MV Barima while the vessel was travelling from Georgetown to Port Kaituma.

The charges were instituted following advice from the Office of the Director of Public Prosecutions after its review of the police investigation.

The defence’s application does not seek to terminate the prosecution, but rather to pause the proceedings pending what it describes as the “proper resolution” of the investigative issues arising from the disaster.